Appellate Division, Second Department
Oct 23, 2007
2007 NY Slip Op 08038
Insurer prevailed
The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests. The Appellate Division, Second Department, affirmed the order, insofar as appealed from by that hospital, denying its summary judgment motion on the first cause of action and awarding the insurer summary judgment upon searching the record. Although the hospital established a prima facie case, the unanswered requests under 11 NYCRR 65-3.5 (b) prevented the 30-day payment-or-denial period under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) from beginning. The hospital's challenge to the requests' propriety or relevance was unpreserved. Appeals by two other hospitals were dismissed because they were not aggrieved under CPLR 5511.
Appellate Division, Second Department
Oct 16, 2007
2007 NY Slip Op 07844
Provider prevailed
An arbitrator impermissibly raised provider eligibility sua sponte when the insurer disputed only the need for the services. The Appellate Division, Second Department, reversed the order denying the provider's CPLR article 75 petition and confirming the master arbitrator's award, vacated both arbitration awards, and remitted to the arbitrator. Payment for services furnished by an independent contractor had been denied because the provider was deemed ineligible for direct payment under 11 NYCRR 65-3.11 (a). Under the circumstances, raising that issue sua sponte violated 11 NYCRR 65-4.4 (e). The arbitrator had not decided the insurer's medical-necessity issue, which required determination on remittal.
Appellate Division, Second Department
Oct 9, 2007
2007 NY Slip Op 07675
Split result
The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another. The Appellate Division, Second Department, reversed the judgment, denied the provider summary judgment on the second cause of action, preserved summary judgment on the third, and remitted for an amended judgment. On the second claim, admissible insurer evidence raised factual issues concerning when bills were mailed and whether verification remained pending. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), (2), additional verification tolled the payment or denial period until all relevant requested information arrived. On the third claim, certified mail and signed return receipts identifying the medical records created a receipt presumption that a denial of receipt did not rebut.
Appellate Division, Second Department
Oct 9, 2007
2007 NY Slip Op 07690
Split result
The insurer failed to establish intoxication or causation as a matter of law, but raised factual issues defeating the provider's motion. The Appellate Division, Second Department, modified the order to deny the insurer's cross motion dismissing the first cause of action and affirmed denial of the provider's summary judgment motion. Insurance Law § 5103 (b) (2) required proof of intoxication and causation. The blood alcohol report lacked a foundation concerning collection and analysis, and causation was unproved. The police report was admissible under CPLR 4518 (a) insofar as it reflected the officer's observations. Verification evidence under 11 NYCRR 65-3.5 (a), (b) raised timeliness issues. Evidence of intoxication, including the blood alcohol report considered in opposition, also defeated the provider's motion.
Appellate Term, First Department
Oct 31, 2007
2007 NY Slip Op 52113(U)
Insurer prevailed
The provider failed to prove that it mailed its claim within the governing 180-day submission period. The lower court granted summary judgment on one of two claims for assigned no-fault benefits. Although an employee of the billing-mailing entity claimed personal mailing, the affidavit described neither the employer's mailing practice nor the basis for recalling the mailing more than three years later. That proof did not establish a mailing presumption, and the insurer alleged receipt outside the period prescribed by 11 NYCRR 65.12 (e). The Appellate Term, First Department, modified the order to deny the provider's cross motion in its entirety and otherwise affirmed.
Appellate Term, Second Department
Oct 23, 2007
2007 NY Slip Op 52071(U)
Insurer prevailed
The provider's record-based affirmation failed to establish personal knowledge needed to admit the claim forms as business records. The affirmation conclusorily identified the attached documents as business records but did not establish knowledge of office practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the provider therefore failed to establish a prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the judgment, vacated the order granting the provider's motion and denied the motion. It dismissed the separate appeal from the order because judgment entry terminated direct appeal, reviewing the issues under CPLR 5501 (a) (1); the parties' remaining contentions were not reached.
Appellate Term, Second Department
Oct 22, 2007
2007 NY Slip Op 27487
Insurer prevailed
⚠ Not followed by Advanced Tempromandibular Disorder & Dental Surgery v Progressive Northeastern Ins. Co. (2010 NY Slip Op 20047)
⚠ Not followed by Central Nassau Diagnostic Imaging, P.C. v GEICO (2010 NY Slip Op 20244)
An insurer's admission that a denial form is genuine does not establish the provider's claim form as an admissible business record. The provider relied at trial on an unanswered notice to admit and its own interrogatory responses, calling no witnesses. The Appellate Term, Second Department, reversed the provider's judgment and directed dismissal. Although the requests were proper under CPLR 3123 (a), admitting the denial's genuineness did not establish the services, dates or charges stated in the claim form. The provider failed to lay the business-record foundation required by CPLR 4518 and thus failed to prove its prima facie case. Its own interrogatory responses also could not establish that case under CPLR 3131 and CPLR 3117.
Appellate Term, Second Department
Oct 19, 2007
2007 NY Slip Op 52037(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider sought to vacate a master arbitrator's award upholding the denial of its no-fault claims. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld denial of the petition. It modified the judgment to add confirmation of the award and otherwise affirmed, leaving the insurer's favorable award intact.
Appellate Term, Second Department
Oct 19, 2007
2007 NY Slip Op 52039(U)
Insurer prevailed
The insurer's investigator's affidavit raised a triable issue as to whether the assignor's injuries arose from an insured incident. In an action to recover assigned no-fault benefits, the provider obtained summary judgment. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Term, Second Department, found that the affidavit demonstrated a founded belief that the alleged injuries did not arise from an insured incident. It reversed the order, insofar as appealed from, and denied the provider's cross motion.
Appellate Term, Second Department
Oct 19, 2007
2007 NY Slip Op 52042(U)
Split result
The provider lacked a business-record foundation, while the insurer failed to prove verification mailing or lack of coverage. The provider's affidavit did not establish personal knowledge of its practices and procedures sufficient to admit the attached documents, defeating its prima facie showing. The insurer established neither mailing of verification and follow-up requests nor an office practice ensuring proper addressing and mailing, so it failed to show the claims were premature. Its fraud affidavits also did not establish as a matter of law that the injuries arose outside an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion.
Appellate Term, First Department
Oct 17, 2007
2007 NY Slip Op 27427
Provider prevailed
The insurer's generic low-impact study failed to raise a triable issue that the assignor's injuries were unrelated to the accident. The Appellate Term, First Department, affirmed summary judgment for the provider on three MRI claims. The study addressed volunteer test subjects without reviewing the assignor's medical file or assessing the claimed injuries. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer bore the burden of establishing a lack of nexus by fact or founded belief. The majority treated unrelated injuries as a coverage defense regardless of when they occurred; a separate concurrence disputed that characterization. The court left open whether a low-impact study alone could suffice where an identifiable injury was clearly incompatible with the accident's biomechanics or no injury existed.
Appellate Term, Second Department
Oct 10, 2007
2007 NY Slip Op 51993(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider challenged a master arbitrator's award upholding denial of its claim for first-party no-fault benefits. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld denial of the petition. It modified the judgment to add confirmation of the award and otherwise affirmed, preserving the insurer's favorable result.
Appellate Term, Second Department
Oct 3, 2007
2007 NY Slip Op 51974(U)
Insurer prevailed
The provider's conclusory employee affidavit failed to establish a business-record foundation for its summary judgment documents. The affidavit merely described the attached documents as true and correct copies of what had been sent to the insurer. It did not establish personal knowledge of the provider's practices and procedures sufficient to admit the documents as business records. The Appellate Term, Second Department, affirmed the denial of the provider's motion for summary judgment on assigned no-fault claims because the provider had not made a prima facie showing of entitlement to judgment.
Appellate Term, Second Department
Oct 3, 2007
2007 NY Slip Op 51975(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider sought to vacate a master arbitrator's award upholding denial of assigned no-fault claims. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld denial of the petition. It modified the judgment to add confirmation of the award and otherwise affirmed, preserving the insurer's favorable result.
Appellate Term, Second Department
Oct 2, 2007
2007 NY Slip Op 51973(U)
Insurer prevailed
The provider's summary judgment award on two assignors' claims was reversed for failure to establish a business-records foundation. MVAIC challenged the supporting employee affidavit on appeal. The affidavit did not demonstrate the employee's personal knowledge of the provider's practices and procedures sufficient to support admission of the documents attached to the motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, found that the provider failed to establish prima facie entitlement to summary judgment, reversed the order, and denied its motion on those two causes of action; the court reached no other issue.
Appellate Term, Second Department
Oct 2, 2007
2007 NY Slip Op 51971(U)
Split result
A defendant properly served under a trade name may be substituted by amendment if the defendant would not be prejudiced. The provider obtained a no-fault judgment against a rental-car company and sought execution against a nonparty leasing company. The provider had neither sought amendment nor established that the nonparty used the defendant's trade name and was properly served. The Appellate Term, Second Department, upheld the stay of execution but modified it to permit an application to amend the pleadings and judgment. It also affirmed denial of the provider's sanctions motion under 22 NYCRR 130-1.1 (a) and (b), because the provider had not established that the companies were a single entity.
Appellate Term, Second Department
Oct 2, 2007
2007 NY Slip Op 51972(U)
Insurer prevailed
A provider that retains an untimely answer without timely objection waives the objection and cannot obtain a default judgment. The insurer served a late answer, and the provider sought and obtained a default judgment more than two months later. Because the provider retained the answer without timely objection, vacatur was warranted regardless of whether the insurer demonstrated a meritorious defense. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to vacate the default judgment and directing the provider to accept the answer as timely.
Appellate Term, Second Department
Oct 1, 2007
2007 NY Slip Op 51969(U)
Insurer prevailed
The provider's employee failed to establish a business-records foundation for the bills supporting its summary judgment motion. The employee's affidavit described the attached documents as business records only conclusorily and did not establish personal knowledge of the provider's practices and procedures. The provider therefore failed to make a prima facie showing of entitlement to summary judgment on its assigned no-fault claims. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.
Trial court, First Department
Oct 29, 2007
2007 NY Slip Op 52095(U)
Insurer prevailed
The insurer established lack of medical necessity through an affirmed orthopedic report, and the provider's conclusory response raised no issue. In two actions consolidated for disposition of the motions, the insurer supplied an IME report based on objective testing that found further orthopedic and rehabilitative treatment unwarranted. The provider's massage therapist responded only that the services were reasonable, necessary and accident-related. The insurer also adequately described its centralized mailing procedure, including batch counts, address inspections, tracking and safeguards for missing mail, establishing proper mailing of the denials. The Civil Court, New York County, granted both insurer motions under CPLR 3212 and dismissed both complaints.
Trial court, Second Department
Oct 22, 2007
2007 NY Slip Op 52257(U)
Insurer prevailed
The insurer established policy-limit exhaustion, which barred the provider's claim despite its challenge to the denial's timeliness. The Supreme Court, Nassau County, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. A verification request issued before receipt of voluntarily mailed records tolled the 30-day payment-or-denial period under 11 NYCRR 65-3.5 (a), (b) and 65-3.8, leaving timeliness disputed. The insurer's affidavit and payment log established exhaustion; the court treated the small shortfall from the policy limit as de minimis. Late denial or payment did not waive exhaustion, and the insurer could pay other providers while withholding payment pending timely requested verification. The provider offered no evidence disputing exhaustion.
